Case 2205711/2018 · Employment Tribunal

In person For the v Respondent — 2019

Case reference: 2205711/2018
Decision date: 23 April 2019
Jurisdiction: England & Wales
Judge: Employment Judge Lewis Representation
Venue: London Central

Indexed: 23 May 2026

Parties

1 named

Claimant

In person For the

Respondent

Key findings

Tribunal's reasoning

At the preliminary hearing on 17 April 2019, Employment Judge Lewis considered strike-out and deposit issues arising from the claimant's flexible working, automatic unfair dismissal, breach of contract and unauthorised deductions claims. The tribunal accepted that the claimant had raised reduced days and home working orally on 24 April 2018, but held that an oral discussion did not trigger the statutory flexible working procedure and that the later email of 30 April 2018 did not satisfy the formal requirements in s80F(2) ERA 1996 and reg 4 of the Flexible Working Regulations 2014. The flexible working claim was therefore struck out, and the related automatic unfair dismissal claim under s104C ERA 1996 was also struck out because no qualifying application had been made.

The claimant's remaining money claims were based on an alleged oral arrangement from November 2016 under which she said she would manage Igloo Kids Retail, receive a net monthly salary of £1,500, and receive 50% of the respondent's profits. She also relied on an alleged later agreement of 2 May 2018 under which the respondent would sell the business by the end of 2018 and she would receive half the sale price. The tribunal held that the alleged sale-and-share arrangement was a business agreement rather than a contract of employment or a contract connected with employment, so that part of the breach of contract claim was struck out. For the same reason, the unauthorised deductions claim based on that second arrangement was struck out because it was not wages and was not quantifiable.

The tribunal did not strike out the first-contract profit-share element. It said it was arguable that the original oral arrangement could involve employment as well as a business agreement, and that non-payment of the profit share could potentially amount to a breach of contract or an unlawful deduction from wages. The tribunal considered the facts too detailed and complicated to assess finally at that stage, so that part of the case was allowed to proceed. Holiday pay was agreed to be dealt with at the full merits hearing, and the section 1 statement claim had been added by consent.

Claims and outcomes

4 findings recorded

Claim type	Issue or finding	Outcome	Protected characteristic	Award
Flexible working	The tribunal held the claimant never made a written application that met the statutory requirements in s80F(2) ERA 1996 and reg 4 of the Flexible Working Regulations 2014. The oral discussion on 24 April 2018 and the email of 30 April 2018 did not amount to a compliant application.	Struck out	—	—
Unfair dismissal	Automatic unfair dismissal under s104C ERA 1996 was struck out because the tribunal found the claimant had not made a qualifying flexible working application, so the statutory dismissal protection could not arise on the pleaded basis.	Struck out	—	—
Breach of contract	The part of the claim based on the alleged 2 May 2018 agreement to sell the business and pay the claimant half the sale price was struck out because the tribunal held it was a business agreement, not a contract of employment or a contract connected with employment. The first-contract profit-share element was not struck out and remained for the full hearing.	Other	—	—
Unlawful deduction from wages	The part of the unauthorised deductions claim based on the alleged 2 May 2018 agreement was struck out because it was not wages and was not quantifiable. The first-contract profit-share element was not struck out and remained for the full hearing.	Other	—	—

Legal tests applied

7 references

Official outcome judgment PDF

Gov.uk primary record

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